2016 National JFON Impact Litigation Report

Asylum and Family-Based Social Groups

On behalf of NJFON and the Catholic Legal Immigration Network, Inc. (CLINIC), we filed a brief in March of 2016 to the Board of Immigration Appeals (BIA) as amici curiae (i.e., friend of the court) urging the Board to adopt a construction of family-based social groups under asylum law that would dramatically increase the odds of success for many of our Central American clients fleeing gang violence. The Department of Homeland Security (DHS) filed a helpful brief largely agreeing with our position. We are awaiting a decision in that case: Matter of L-E-A-.

We continued this advocacy effort related to family-based social groups into the United States Court of Appeals for the Eighth Circuit. The law in the Eighth Circuit on this subject is arguably the worst in the country. In partnership with the Center for New Americans, the University of Minnesota Law School, and a private law firm in St. Louis, we filed a petition for rehearing in Aguinada-Lopez v. Lynch. That decision was the third in a series within the Eighth Circuit apparently rejecting family-based social groups in categorical terms. It also stood in tension with an earlier positive decision from the Court, the status of which remained unclear. The rehearing petition was successful insofar as the Court reaffirmed in a published decision its earlier recognition of the validity of family-based social groups and vacated the negative Aguinada-Lopez decision. See Aguinada-Lopez v. Lynch, 825 F.3d 407 (8th Cir. June 7, 2016). While the Court denied our first petition for other reasons, we have received a positive outcome for our client who has since been released from detention and reunited with his spouse. We are currently awaiting the outcome of a pending motion to reopen before the Board of Immigration Appeals (BIA) and a new petition for rehearing before the Court.

The Duress Exemption to the Persecutor Bar to Asylum

On August 8, 2016, the BIA issued another Amicus Invitation, this time requesting briefs on the remanded Negusie Proceedings, seeking legal opinions on the question of whether there should be a duress exception for refugees compelled to participate in persecution. The BIA previously had held that refugees coerced into participation in persecution were ineligible for asylum in the U.S. The Supreme Court in Negusie held in 2009 that that the BIA had made a mistake of law and had to reconsider the question. The Board’s August 2016 Amicus Invitation signaled that it is now ready to do so. The Harvard Immigration Law Clinic, the Center for Gender and Refugee Studies, the National Immigration Justice Center (NIJC), the American Immigration Lawyers Association (AILA), and Justice For Our Neighbors, among others, worked as a team to develop three complementary briefs addressing the question posed by the BIA. The three briefs were submitted to the Board on November 7, 2016. The briefs urge the BIA to adopt a comprehensive framework recognizing the existence of a duress exception to the persecutor bar. That case, Matter of Negusie, is pending.

The JFON/NIJC/AILA brief to the BIA in Negusie was modeled after an earlier amicus brief submitted by JFON, the University of Minnesota Law School, and the Advocates for Human Rights, addressing the required procedural safeguards that must be followed prior to applying the persecutor bar. That brief was submitted in the Eighth Circuit on September 26, 2016, in Cortez-Gaitan v. Lynch, No. 16-1651, __ F.3d __ (8th Cir. 2016). The case is also pending.

Combating Family Detention Practices

In late 2015, we filed an administrative claim under the Federal Tort Claims Act (FTCA) for one of our minor U.S. citizen clients who was unlawfully detained for nearly two months and threatened with deportation for nearly a year before DHS relented and the Immigration Court found she is a U.S. citizen. That administrative claim, which the government denied, laid the groundwork to file a lawsuit in U.S. District Court against the United States in September 2016. See S.V. v. United States, No. 16-419 (D. Neb. September 2, 2016). The case has been featured in the Hold CBP Accountable website. See https://holdcbpaccountable.org/category/nebraska/. The government’s response to our complaint is due in December 2016.

Advocating for Compassionate Prosecutorial Discretion Policies

On March 8, 2016, the national JFON network filed its first-ever amicus curiae brief to the U.S. Supreme Court in defense of the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) programs, which had been on hold since early 2015 due to a lawsuit filed by 26 Plaintiff-States. While the Court split in a 4-4 decision, which left intact the lower court’s decision blocking the new programs, the case provided an important opportunity for JFON to raise its profile and add its voice to the national chorus of advocacy organizations that continue to call for compassionate immigration enforcement measures.